James Ee Kah Fuk, and Marcus Chong Chao Shern for the 2nd Respondent in the Petition and the Plaintiff in the Originating Summons [Messrs K.F Ee & Co.] 1. ) Derrick Chan Choon Keong and Brandon Toh Xianming for the 2nd Defendant in the Peti

James Ee Kah Fuk, and Marcus Chong Chao Shern for the 2nd Respondent in the Petition and the Plaintiff in the Originating Summons [Messrs K.F Ee & Co.] 1. ) Derrick Chan Choon Keong and Brandon Toh Xianming for the 2nd Defendant in the Peti

The originating summons for a Fortuna injunction was dismissed as an abuse of process and not supported by prima facie irreparable harm; concurrently, the winding-up petition was allowed on just and equitable grounds because the parties had suffered a complete breakdown of mutual trust and confidence rendering the company unable to continue as a going concern; the court appointed a liquidator and made specific costs orders.

Citation
SAMAN PEMULA NO. WA-24NCC-387-09/2021 (Mahkamah Tinggi)
Parties
Petitioner: Ter Chin Heng; 1st Respondent: Chiptar Holdings Sdn Bhd; 2nd Respondent: Ter Thian Tin; 3rd Respondent: Ter Wei Hong; 4th Respondent: Li Yuhua; 5th Respondent: Personal Representative of the Estate of Teh Yu Chai @ Ter Swee Leong (Amanah Raya Berhad)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
21 March 2022
Case Number
SAMAN PEMULA NO. WA-24NCC-387-09/2021 (Mahkamah Tinggi)
Procedural Posture
Winding Up Petition (companies Act 2016) Heard With Originating Summons for Fortuna Injunction / Hearing Concluded Grounds of Judgment Delivered
Outcome
Originating Summons dismissed; Winding-up petition allowed (Company to be wound up); liquidator appointed; costs awarded.
Legal Topics
Winding Up (just and Equitable), Fortuna Injunction (restraint of Winding Up Petition), Abuse of Court Process, Directors and Shareholders Disputes, Fiduciary Duties, Appointment of Liquidator, Costs
Source Language
Malay/English
Company Law Injunctions Civil Procedure Equity Winding Up (just and Equitable) Fortuna Injunction (restraint of Winding Up Petition) Abuse of Court Process Directors and Shareholders Disputes +3 more

Case Brief

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Parties

Ter Chin Heng

Petitioner

Chiptar Holdings Sdn Bhd

1st Respondent

Ter Thian Tin

2nd Respondent

Ter Wei Hong

3rd Respondent

Li Yuhua

4th Respondent

Personal Representative of the Estate of Teh Yu Chai @ Ter Swee Leong (Amanah Raya Berhad)

5th Respondent

Procedural Posture

Winding Up Petition (companies Act 2016) Heard With Originating Summons for Fortuna Injunction / Hearing Concluded Grounds of Judgment Delivered

Legal Issues

  1. 1 Whether a Fortuna injunction should restrain prosecution/advertisement of a winding-up petition
  2. 2 Whether winding up is appropriate on just and equitable grounds due to breakdown of mutual trust and confidence
  3. 3 Whether alternative remedies (rights issue suit, fiduciary suit) render winding up inappropriate

Ratio Decidendi

The originating summons for a Fortuna injunction was dismissed as an abuse of process and not supported by prima facie irreparable harm; concurrently, the winding-up petition was allowed on just and equitable grounds because the parties had suffered a complete breakdown of mutual trust and confidence rendering the company unable to continue as a going concern; the court appointed a liquidator and made specific costs orders.

Court Disposition

Originating Summons dismissed; Winding-up petition allowed (Company to be wound up); liquidator appointed; costs awarded.

Orders

  • Originating Summons dismissed with costs of RM15,000 to be paid by the 2nd Respondent to the Petitioner
  • Winding-up order granted to wind up Chiptar Holdings Sdn Bhd pursuant to paragraph 1 of Enclosure 1